# FILED

July 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________ RIVERBLUFF COOPERATIVE, INC., CHICKASAW BLUFF COOP ERATIVE, INC., KEVIN KANE, DAVID AND KAY SOLOMON, T. J. AND EIGA ODEN, DENNIS AND LANA SMITH, ULYS AND JOAN WARD, JAY AND PAT FERGUSON, STANTON BRYANT, GEORGE T. LEWIS III, KEVIN AND GAYLE GRAUER, LARRY AND JOYCE HASSEL, PATRICK W. HALLORAN, RICHARD J. RAINES, MARY PIPER AND PETER STAMBROOK, Plaintiffs-Appel

lants, Vs. C.A. No. 02A01-9805-CH-00128 Shelby Chancery No. 110123-1 CITY OF MEMPHIS AND MAYOR W. W. HERENTON, Defendants-Ap

pellees, and CHICKASAW BLUFFS CONSERVANCY, INC., Intervening Appe

llee-Defenda

nt.

_____________________________ ______________________________________________ _ From the Chancery

Court of Shelby Count

y at Memphis. Honorable W. Michael Maloan, Chancellor Cannon F. Allen , Memphis, Tennessee Sara Falkinham , Memphis, Tennessee Attorneys for Plai

ntiffs/Appellants

. Ken McCown , Deputy City Attorney, Memphis, Tennessee Attorney for Defendants/Appellees City of Memphis and Mayor W. W. Herenton. Edward M. Bearman , BRANSON & BEARMAN, Memphis, Tennessee Reva M. Kriegel , DONATI & ASSOCIATES, Memphis, Tennessee Attorneys for Intervening Defendant/Appellee Chickasaw Bluffs Conservancy.

OPINION FILED: AFFIRMED IN PART A ND REMANDED

PER CURIAM

This appeal involv es a dispute concerning the construction of a pedestrian walkway al on g the top of the Fourth Chickasaw Bluff ov erlooking the Mississippi River on the east side of2

Riverside Drive between Union Avenue and Calhou

n Street in downtown

Memphis. This is

the secondcontroversy concerning the walkway to reac h this Court . Previously the Court considered

an appeal by the M emphi s mayor from the chancery court order requiring him to execute the construction contract for the walkway. Chickasaw Bluffs Con servancy, et al v. The City of Memphis, et al , C.A. No. 02A01-9607-CH-00169 (Tenn. App. Mar. 25, 1997). The pertinent facts established in Chickasaw Bluff Conservancy set out in this Court’s opinion, as amplified by the record in this case, pro vide a helpful history of the events leading to the present controversy. The walkway is the centerpiece of a five mile sidewalk system linking riverfront par ks, historic sights, cultur al center s and commercial and residential developments in Memphis. A walkway system has been pr ojected since the

late1960's, and with the advent of various urban renewal projects in downtown Memphis in the 1980's, efforts to build a walkway escalated. In 1982, the Center City and Riverfront Public Spaces Plan recommended that

a walkway be built into the face of the bluff. This and subsequent plans ignited controversy between public and private interest

s. After severa

l years, the compe

ting interest

s re ached a comprom

ise permitting construction of the walkway along the face of the bluff west of the properties owned b y the Riv erbluff and Chickasaw Bluff Cooperatives. The compromise, which called for the walkway to be built along the t op of the bluff, was incorporated into the terms and conditions of the “South Bluffs Planned Development, P.D. 89-319.” In the spring of 1992, the South Bluffs developer requested a land use change, changing the zoning of the area from commercial to mixed residential an d com mercial use. The developer’s proposal called for theconstruction of ni ne single family re

sidences along the

crest of the bluff and eliminated the walkway he was required to build under P.D. 89-319. Ultimately, the City, th e Chickasaw Bluffs Conservancy and the South Bluffs developer reached a compromise

whic h permitted the construction of nine homes along the crest of the bluff and proposed that th e walkway be cut into the face of the bluff eight feet below the crest. That compromise

was incorporated into the City Council’s resol ution of December 8, 199 2, approving the amendment conditioned upon c onstruction of the walkway as described. While the compromise

relieved the developer

from his obligation t

o build the walkway

, it obligated him to provide fi na ncial security and to build connectors to the walkway across his property at3

Calhoun and Butler Streets. Engineering reports obtained by both the City andthe South Bluffs developer indicated that construction of a walkway cut or “notched” into the bluff would not destabilize the bluff. The amended planned

development was d

esignated P.D. 91- 330, and it obligate d the City to build the entire walkway into the face of the bluff approximately eight feet below the crest, and it obligated the developer to construct connectors to the walk at Calhoun and Butler Streets. In addition, the City Council required the developer to notify prospective purchasers of homes atop the bluff regarding construction of the walkway. The City Council entertained a motion to reconsider the December 8, 1992, resolution amending the South Bluffs Planned Development and p laced the reconsideration of the resolution on the City Council’s agenda for January 5, 1993. At the January 5, 1993, City Council meeting, the South Bluffs developer introduced a letter from professional engineers and contractors that opined that no adverse effects would be sustained to the bluff by construction of the walkway if prudent engineeringpractices were followed. After hearing comments from the public and receiving the testimony of professional engineers that cutting into the bluff would notundermine its stability, the City Council approved the amen ded Pl anned Developme nt, designated as P.D. 91-330. The City Council’s January 5, 1993, resolution stated:

WHEREAS , Section 14 of the Zoning Ordinance-Regulations of the City of M emphis and Shelby County, being a section of the Joint Ordinance-Resolution No. 3064, dat ed Oc tober 7, 1980, authorizes the Council of the City of Memphis to grant a planned dev elopment

for certain stated purposes in the various zon in g districts; and, WHEREAS , The Memphis Ci ty Co uncil on July 25, 1989, approved the applicatio

n of South Bluffs Development Associ ate s (P.D. 89-319) for a

planned development

located at the nor

thwest corner of West Georgia Avenue and Tennessee Street; and WHE REAS , The Memphis City Council on July 21, 19 92 , approved the ap plication of South Bluffs De velopment Associates (P.D. 91-330) amending Area A of the planned developm ent to permi t predominantly low density residential development; and WHEREAS , The Council of the City of Memphis received the recomme n dation of the Land Use Control Board, the report and reco mmend ation of the Office of Planning and Development regarding the proposed planned development; and WHEREAS , The Council of the City of Memphis held a publi

c hearing on the planned development, received and considered the presentations of all parties c on cerned with the proposed4 development; and, WHEREAS , The Council of the Cityof Memphis resolved that the bluff walkway feature s hould be l ocated at the crest of the river bluff in Area A an d th at the specific design should be subject to site plan review; and, WHEREAS , South Bluffs Associates has filed a site plan for development

of Area Awhich provides for a modified location of the bluff walkwa y recessed at the crest of the bluff and has proposed a specific design f or constructing the walkway at that location; and, WHEREAS , The City Council has received a presentation of the Ar ea A site plan including the revised location and spec ifi c design plan for the

bluff walkway; NOW, THEREFORE BE IT RESOLVED By the Council of the City of Memphis that the site plan proposed by South Bluffs Associates including the revisedlocation of the bluff walkwa

y is hereby approved subject to the attached conditions. BE IT FURTHER RESOLVED T hat the approved site plan shallbe deemed to be in co mpliance with

the requirement

s of said aforementioned

section of the Zoning Ordinance-Regulations as well as the approved outline plan.

* * * Conditions: 8. The Bl uffwa lk shall begin at a point where Butler Avenue intersects with the northwest corner of Area A and shall continue along the bluff past the southwest corner of the proposed Cornerstone Inn and shall connect withthe northern terminus of the existing Bluffwalk easemen t located at the west end of Calhoun Avenue as reflected on the final plat for Phase One of

P. D. 89-319. Turley shall con str uct adequate access to the Bluffwalk

at or around Butler Avenue and at or around the south property line of the proposed Cornerstone Inn. The final plat for P.D. 91-330, approved on April 6, 1993, shows the w alkway on city property with connectors and easements through the South Bluffs development. In 1994 and 1995, the City undertook feasibility studies to determine the best walkway design. In June, 1994, the City contrac ted with J. Ritchie Smith Associates, a landscape architecturefirm, to prepare a design and feasibility study for the walkway. Also in the summer of 1994, the Mayor appointed a Riverbluff Walkway Review Committee to ev aluate t he proposals developed by J. Ritchie Smith Associates

. The landscape architect submitted three proposals which included (1) an elevated boardwa lk, (2) a pre cast concrete s

idewalk notched i

nto the bluff and (3) a cast-in-place concrete sidewalk and retaining wall notched into the bluff and stabilized by so ldier piles. Engineering reports indicated that construction of an elevated5

boardwalk

would be the least intrusive. The City conductedhearings and public forums at which the City’s consulting te

am made pr esentations to the public on the resul

ts of their feasib

ility study and design recommendations. Many residents of the So uth Bluffs development and the Chickasaw and Riverbluff Cooperatives attended. At these meetings, the residents voic

ed their concerns and opposition to construction of the walkway and to its elevated design. Ultimately, the City and the consulting team reached a consensus, calling for the construction of a cast-in-pla ce concrete

sidewalk and retaining wall notched into the bluff with the addition of soldier piles to be installed at close interva ls in the land above the notch in order to provide continuous support for the soil both during and after construction. On February 21, 1995, the City Council held another public

hearing on the appropriation of funds for the walkway at which the various design alternatives and stability issues were reviewed. The City Council heard testimony from the consul tants and f rom City Engineer James Collins that neither the el evated boardwalk nor the

notched walkway, if constructed p roperly, would de

stabiliz e th e bluff. Thereafter, th

e City Council

appropriated over $1 Million in federal funds it already had received for th e project and appropriated additional local funds in excess of $500,000 for construction. In 1995, final des

igns were prepa

red with the consu

ltation of the City’s

engineers. On August 29, 1995, the Riverbluff Walkway Review Committee appr oved the design and construction plan. The project was put out for bid, and Chris-Hill Construction Company was awarded the contract. A contract was prepared and executed by City officials, but on February 20, 1996, the Mayor adv ised the Ci ty Council that he would not sign the contract. In March, 1996, the Conservancy filed suit in the Shelby County Chancery Court against the Mayor seeking a wri t of man damus to compel his execution of the contract pursuant to P.D. 91-330. Ultimately

in March, 1998, this Court affirmed the Chancery Court’s judgment finding that the Conservanc y was entitled to a w rit of mandamus re

quiring the mayor t

o proceed wit

h construction of the walkway pursuant to P.D. 91-330 and its incident resolutions. The contract was rebid, and Grinder Brothers Construction Company was awarded the contract in June, 1997. On September 2, 1997, the City Council passeda resolution providing additional funding for the construction contract, a nd on September 30, 19 97, the notice to proceed was issued to the contractor. The City Council also authorized creation of a new design6

review committee compris ed of bluff resid

ents and walkway

supporters. This c

ommitte e met fou r time s in September and O ctober, 1997, and

recommended lan

dscaping and sec

urity enhancements to the project. On Octo ber 27, 1997, the plaintiffs, residents of the Riverbluff and Chickasaw Bluffs Cooperatives,

filed the instant lawsuit against the City to enjoin construction of the notched sections of the walkway under the approved plans and specifications. The plaintiffs allege that notching the bluff

would have a catastrophic effect on their homes and property because the bluff is comprised of loess soil, a silty, windblown soil that destabilizes when saturated w ith water. The plaintiffs assert

that notching the bluff and building the walkway would result in a nuisance and remove the lateral and subadjacent support from their property, thus increasing the potential for landslides, and le

aving them with

no adequate remedy at law. Also, the plaintiffs allege that the walkway, as proposed, does not comply with the City Council resolutions and the final plat of P.D. 91-330. They sought monetary damages as well as injunctive relief. On March 12, 1998, the trial court granted the motion t o intervene f iled by the Conservancy. On May 6, 1998, t he tr ial court granted the defendants’ motion for summary judgmenton the plaintiffs’ claims for injunctive relief as to nuisanc e and the loss of lateral support

. In granting the motion for summary judgment, the trial court determined that immediate

and irreparable harm was not established under the injunction requir ements of Rule 65 Tenn.R.Civ.P. That judgment was made final under Rule 54.02 Tenn.R.Civ.P., and the notice of appeal was filed the same date. The trial court later gra nted th e defendants’ motion for summary judgment as to the third count regarding the project’s compliance with P.D. 91-330 and its incident resolutions. That order has not been appealed and is not an issue beforethe Court. The claim for money damages is still pending. On Ma y 7, 1 998, the plaintiffs filed in this Court a motion for stay of construction pending app eal, which t he Court remanded to the trial court by Order entered May 19, 1998. The trial court denied the stay. Construction on the project began on June 1, 1998. On June 4, 1998, the plaintiffs filed a renewed motion for a stay of construction pending appeal. On June 17, 1998, the Court gra

nted the plaintiff

s’ motion to

stay construction along the north notch and the south notch of

the bluff until September 1, 1998, conditioned on plaintiffs posting the bond set by the trial court. The Court’s order expressly permitted further construction to pr

oceed in7

the areas not i ncluded in this proceeding and permitted the parties to undertake “wind-up and stabilization” procedures to the bluff. The June 17 order also permitted an e

xpedited appella

te schedule culminating in oral

argument before

this Court on July 7, 1998. Plaintiffs did not post the bond and the trial court’s judgment was not stayed. Plaintiffs’ issues for review, as set out in their brief, are: I. Whether the trial court erred in granting summary judgment on plaintiff’s claim for injunctive relief for latera l supp ort on the bas is that the plaintiffs could not establish immediate and irreparable

harm under Rule 65 Tenn.R.Civ.P., and, alternatively, whether genuine issues of

material fact existed

as to these issues warranting a trial on the merits. II. Whether the trial court erred in granting summary j udg ment on plaintiffs’ claim for injunctive relief for lateral support on the basis that plaintiffs had an adequate remedy at law. A trial cou rt should grant a motion for summary judgment only if the movant demonstra tes t hat there are no genuine issues of m

aterial fact an

d that the moving par

ty is entitled to judgment as a matter of law. Rule 56.03 Ten

n.R.Civ.P.; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The party moving for summary jud gment be ars the burden of demonstrating that no genuine issues of material fact exist. Byrd , 847 S.W.2d at 210. In Byrd , the Tennessee Supreme Court stated:

Once it is shown by the mov ing par ty that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affi davi ts or discovery ma terials, that ther

e is a genuine, material fac t dis pute to warrant a trial. (Citations omitted). In this regard, Rule 56.05 provides that the nonmoving partyc ann ot simply rely upon hi s pleadings but must s

et forth specific facts showing that there is a genuine issue of material fact for trial. Id. at 211. (Emphasis in original). The order granting de

fendants’ summary judgment incorporates the judge’s ruling from the bench at

the conclusion of the summary judgment hearing. The judgment state s as pertinent: In this case the risk or imminency and certainty of injury is a matter of dispute among the various experts which the Court has the benefit of by affidavit and deposition. The issue is whether the likelihood of harm reach such a degree of certainty tha

t an injunction shoul

d issue to prevent

the enactment of PD 91-330. After considering all of

the legal requi rements of this case, the Court is of the opinion that summary judgment should

issue in favor of the de

fendant.8 The proof fails to esta

blish the immediate

and irreparabl

e injury requirements of Rule 65. Pl aintiffs have an adequate remedy at law, tha

t of damages. The plaintiffs have f

ailed to also prove

that t here’ s an issue, per se, that the a

cti vity of defendants would be imminent and certain to occur and entitle them to prospective relief. Although the trial court

appears to premise its decision, at least in part, on the failure of plaintiffs to show immediate and irreparable damages, from the record before us, it appearsthere is a genuine dispute of material fact on that issue. The construction of th

e walk between Bu

tl er on th e north and Calhoun on the south is authorized

as part of Memphis Ordinance P.D. 91-330. We find nothing in the record pertaining to legislation a uthorizing construction of the walk north of Butler. We will first deal with the

case as it pertains to the construction pursuant to P.D. 91-330. In Chickas aw Bluffs Conservancy, this Court found:

Under the term s and c onditions of the planned development or dinance, PD-91-330, the De veloper is obligat

ed to const

ruc t accessto the notched bluff walk. By the same tok en, the Developer

agreed to this

obligation only on the condition that the City complete the remainder of the subject bluff

walk. The City’s commitment to do so became a part of the terms and conditions of the planning ordinance. The Mayor is obligated to perform as necessary to carry

outthe complete terms of the ordinance, and, therefore, is obl ig ated to proceed with the construction of the walk and to require the Developer to provi de t he access to the walk. Id. at 15. Actions taken by city coun cils may be either

legislative or adm

in istrative, and the threshold question is whether the c ounc il exercised its legislative or administrative authority. The term “administrative” is often used interchangeably with judicial or quasi-judicial. Fallin

v. Knox County Bd. of Commissi oners , 656 S.W.2d 338 (Tenn. 1983). The City Council’s approval of the resolution mandating construction of that part of the walkway was done pursuant to its administrative authority and the plans for construction of the walkway were promulgated pursuant to an existing zoning ordinance for a planned development. Chickasaw Bluffs Conservancy et al. v. City of Mem phis, et al. , No. 02A01-9607-CH-00169 (Tenn. App. March 25, 1997) p. 13. Citizens generally cannot maintain a suit to restrain an action by municipal authorities unless they are acting i

llegally and the e

ffect of the ille

gal action occas

ions a specific injury not9

common with an injury to the citizens as a whole. State v. American Glanszstoff Corporation , 167 Tenn. 597, 72 S.W.2d 775 (1934); Reams v. Board of Mayor and Aldermen , 155 Tenn. 222 (1927). Thus, two prongs are required to maintain a suit such as the instant case. As to P.D. 91- 330, plaintiffs satisfied the second prong b y their special int

erest. However, the record does not indicate that plaintiffs have satisfied the fir st prong. The complaint does not allege, nor is there any pr oof in the record that P.D. 91-330 is illegal or otherwise arbitrary and capricious legislation. B oth legislative and administrative decisions are presumed to be valid, and a h eav y burden of proof rests upon the shoulders of the party who challenges the action. McCallen v. City of Memphis , 786 S.W.2d 633, 641 (Tenn. 1990). When reviewing administrative acts, the Courtmust determine whether the action of the city council was illegal or in excess of jurisdiction. McCallen at 641. If the exe rcise of authori

ty by the governme

ntal bo dy can be classifiedas illegal, arbitr ary or capricio

us, courts have r

outinely provided r

eli ef. Abuse of discretion, arbitrariness, c apriciousness an

d unreasonablen

ess are terms

o ften used interchangeably. Hoover Motor Exp. Co. , Inc. v. Railroad and P

ublic Utilities Commission , 2 61 S.W. 2d 233, 238 (Tenn. 1 953). However, t he Court must refr

ain from substitutin

g its judgmentfor that of the loc al governmental b

ody. An act wil

l be invalidated only when the decision is clearly illegal, arbitrary or capricious. McCallen at 642. Under the “illegal, arb

itrary or capric

ious” standard of

review for admin

istrative acts, it is evident that the circumstances of this case do not warrant the invalidation of the act o f the M emphis City Council. Plaintif fs have not allege

d that the City Counci

l’s resolutions wer e illegal, and there has be

en no proof introd

uced to suggest tha

t. Implicit

in the prior Chickasaw Bluffs Conservancy opinion was the finding that P.D. 91-330 andits incident resolutions were legal and valid. Furthermore, we decline to find that the ordinance and resolutions are arbitrary

or capricious. Given the long hi story of attempts to develop the bluff dating to 1982, the

numerous engineering studi es performed by t

he City and the deve

loper, and the pub

lic hearings, agreements

and compromises r

eached along the

way, it can hardly be said that the ordinance and incident resolutions are in

any way arbit

rary or capricious. There is clearly material evidence to support the actions of the City Council. See, Laidlaw Environmental Servs. Of Nashville, Inc. v. Metro. Board of He alt h, 934 S. W.2d 40, 49 (Tenn. App. 1996); Sexton v. Anderson10

County , 587 S.W.2d 663, 666 (Tenn. App. 1979). Therefore, we affirm the trial court’s order granting defendants’ summary judgment insofar as it pertains to the construction authorized by P.D . 91-330 for the r easons set out in thi

s opinion. This Court may affirm a d ecree corre ct in result but ren dered upon diffe

rent, incomplete, or erroneous grounds. Hopkins v. Hopkins , 572 S.W.2d 639 (Tenn. 1978); Duck v. Howell , 729 S.W.2d 110 (Tenn. App. 1986). As we heretofore

noted, however,

the record is

silent concernin

g legislative autho

rity for walkway construction north of Butler. Since such authority is essential for action on the part of the City, it would appear that the record may be incomplete. In any event, the existence of such legislative authority should be determined in

order to consider the merits of the appeal as to the walkway construction not included in P.D. 91-330. In sum, the order of the trial court granting summaryjudgment is affirmed as to that part of the construction included in Memphis City Ordinance P.D. 91-330. The case is rema nded to the trial court for further proceedings concerning the construction of the walkway nort h o f Butler, consistent with this opinion. Costs of the appeal are assessed one-half to plaintiffs and one-half to defe

ndants.

PER CURIAM